Some prominent conservative lawmakers and commentators are advocating for ending no-fault divorce, laws that exist in all 50 US states and allow a person to end a marriage without having to prove a spouse did something wrong, like commit adultery or domestic violence.
The socially conservative, and often religious, rightwing opponents of such divorce laws are arguing that the practice deprives people – mostly men – of due process and hurt families, and by extension, society. Republican lawmakers in Louisiana, Oklahoma, Nebraska and Texas have discussed eliminating or increasing restrictions on no-fault marriage laws.
Defenders of the laws, which states started passing a half-century ago, see legislation and arguments to repeal them as the latest effort to restrict women’s rights – following the overturning of Roe v Wade and passage of abortion bans around the country – and say that without such protections, the country would return to an earlier era when women were often trapped in abusive marriages.
“No-fault divorce is critical to the ability, particularly the ability of women, to be able to exercise autonomy in their own relationships, in their own lives,” said Denise Lieberman, an adjunct professor at the Washington University School of Law in St Louis, who has a specialty in policies concerning gender, sexuality and sexual violence.
Before 1969, when the then California Republican governor, Ronald Reagan, who had been divorced, approved the country’s first no-fault divorce law, women, who are more likely to experience violence from an intimate partner, were often forced to stay in marriages. If they could not prove that their husband had been abusive or persuade him to grant a divorce, they would not be able to take any assets from the marriage or remarry, according to a study in the Quarterly Journal of Economics.
States around America gradually followed suit and passed similar laws allowing unilateral divorce until 2010, when New York became the last state to approve the practice.
Between 1976 and 1985, states that passed the laws saw their domestic violence rates against men and women fall by about 30%; the number of women murdered by an intimate partner declined by 10%; and female suicide rates declined by 8 to 16%.
Without such laws, “it’s hard to prove anything in court relating to a family because you don’t have any witnesses”, said Kimberly Wehle, professor at the University of Baltimore School of Law. “It’s very difficult to get evidence to show abuse of children. How do you do it? Do you put your kids on the stand?”
Conservative commentators such as Matt Walsh and Steven Crowder have argued that the laws are unfair to men and hurt society because they lead to more divorces. The Republican senator JD Vance of Ohio has also criticized the impact of divorce on US society.
The divorce rate in the United States increased significantly from 1960, when it was 9.2 per 1,000 married women, to 22.6 in 1980. But by 2022, the rate had fallen to 14.5.
On the increase in divorces, Vance said in 2021: “One of the great tricks that I think the sexual revolution pulled on the American populace” is the idea that “these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy, and so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term”.
Beverly Willett, a writer and attorney, argues that unilateral no-fault divorce is also unconstitutional because it violates a person’s 14th amendment right to due process.
The defendant “has absolutely no recourse to say, ‘Wait a minute. I don’t want to be divorced, and I don’t think that there are grounds for divorce. I would like to be heard. I would like to call witnesses,’” said Willett, who experienced a divorce she didn’t want because she thought her marriage could be saved. “I believed in my vows” and “didn’t want to give up”.
But Willett’s argument relies on the idea that “women are either property or that somehow men’s liberty is restrained by not allowing them to stay in a marriage with someone who does not want to be married”, said Wehle, who also wrote about it in the Atlantic. “I disagree with the idea that women are somehow property interests of their husbands. That is an arcane relic of law that has no place in modern society.”
Willett responded to Wehle’s critique by writing that “nobody has suggested a return to antiquated laws of the 18th and 19th century. Considerable reform that protects women and ensures their equality in family court has been enacted since then.”
On the argument that no-fault divorce reduces domestic violence, Willett points to data that most domestic violence occurs between unmarried couples and says regardless, with “any contract, any lawsuit, you still have to follow the constitution”.
But without such laws, victims of domestic violence would then have to navigate a court system that can be time-consuming, “very adversarial and very costly” because the plaintiff often must then pay for childcare and transportation, said Marium Durrani, vice-president of policy for the National Domestic Violence Hotline.
“Any sort of additional barrier that we add to the ease of legal proceeding is, frankly, a nightmare and an enormous burden for survivors,” said Durrani. “I’m not trying to be an alarmist, but it can increase death [if] a survivor of domestic violence has to prove that they are being abused in a divorce proceeding.”
Still, Lieberman does not think Republicans will succeed in their efforts to make it more difficult for people to get divorced.
“I do believe that that train has left the station. I mean, we have had no-fault divorce now for 50 years,” Lieberman said. But “I didn’t think the supreme court would overturn Roe v Wade, which we had for 50 years, so I suppose we will see.”
